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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of: )
)
Pacific and Southern Company, Inc.) CSR-5326-A
)
For Modification of the Portland-)
Poland Spring, Maine ADI Market )
MEMORANDUM OPINION AND ORDER
Adopted: March 30, 1999 Released: April 2, 1999
By the Deputy Chief, Cable Services Bureau:
I. INTRODUCTION
1. Pacific and Southern Company, Inc., licensee of Station WCSH-TV (NBC, Ch. 6), Portland,
Maine, has filed the above-captioned petition which seeks to include 26 communities located in Strafford and
Rockingham Counties, New Hampshire, within the Area of Dominant Influence ("ADI") of WCSH-TV.
Oppositions were filed to this request on behalf of MediaOne of New Hampshire, Inc., the cable operator
serving the subject communities, and WMUR-TV, Inc., licensee of Station WMUR-TV (ABC, Ch. 9),
Manchester, New Hampshire. WCSH-TV has filed replies to both oppositions.
II. BACKGROUND
2. Pursuant to 614 of the Communications Act and implementing rules adopted by the
Commission in its Implementation of the Cable Television Consumer Protection and Competition Act of
1992, Broadcast Signal Carriage Issues ("Must Carry Order"), a commercial television broadcast station
is entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's
market for this purpose is its "area of dominant influence," or ADI, as defined by the Arbitron audience
research organization. An ADI is a geographic market designation that defines each television market
exclusive of others, based on measured viewing patterns. Essentially, each county in the United States is
allocated to a market based on which home-market stations receive a preponderance of total viewing hours in
the County. For purposes of this calculation, both over-the-air and cable television viewing are included.
3. Under the Act, however, the Commission is also directed to consider changes in market areas.
Section 614(h)(1)(C) provides that the Commission may:
with respect to a particular television broadcast station, include additional communities within
its television market or exclude communities from such station's television market to better
effectuate the purposes of this section.
In considering such requests, the Act provides that:
the Commission shall afford particular attention to the value of localism by taking into
account such factors as--
(I) whether the station, or other stations located in the same area, have been historically
carried on the cable system or systems within such community;
(II) whether the television station provides coverage or other local service to such community;
(III) whether any other television station that is eligible to be carried by a cable system in such
community in fulfillment of the requirements of this section provides news coverage of issues
of concern to such community or provides carriage or coverage of sporting and other events
of interest to the community; and
(IV) evidence of viewing patterns in cable and noncable households within the areas served
by the cable system or systems in such community.
4. The legislative history of this provision indicates that:
where the presumption in favor of ADI carriage would result in cable subscribers losing
access to local stations because they are outside the ADI in which a local cable system
operates, the FCC may make an adjustment to include or exclude particular communities from
a television station's market consistent with Congress' objective to ensure that television
stations be carried in the areas which they serve and which form their economic market.
* * * * *
[This subsection] establishes certain criteria which the Commission shall consider in acting
on requests to modify the geographic area in which stations have signal carriage rights. These
factors are not intended to be exclusive, but may be used to demonstrate that a community is
part of a particular station's market.
5. The Commission provided guidance in its Must Carry Order, supra, to aid decision making
in these matters, as follows:
For example, the historical carriage of the station could be illustrated by the submission of
documents listing the cable system's channel line-up (e.g., rate cards) for a period of years.
To show that the station provides coverage or other local service to the cable community
(factor 2), parties may demonstrate that the station places at least a Grade B coverage contour
over the cable community or is located close to the community in terms of mileage. Coverage
of news or other programming of interest to the community could be demonstrated by program
logs or other descriptions of local program offerings. The final factor concerns viewing
patterns in the cable community in cable and noncable homes. Audience data clearly provide
appropriate evidence about this factor. In this regard, we note that surveys such as those used
to demonstrate significantly viewed status could be useful. However, since this factor requires
us to evaluate viewing on a community basis for cable and noncable homes, and significantly
viewed surveys typically measure viewing only in noncable households, such surveys may
need to be supplemented with additional data concerning viewing in cable homes.
6. In adopting rules to implement this provision, the Commission indicated that requested changes
should be considered on a community-by-community basis rather than on a county-by-county basis, and that
they should be treated as specific to particular stations rather than applicable in common to all stations in the
market. The rules further provide, in accordance with the requirements of the Act, that a station not be deleted
from carriage during the pendency of an ADI change request.
III. THE PLEADINGS
7. WCSH-TV is located within the Portland-Poland Spring, Maine ADI. The counties of
Strafford and Rockingham, New Hampshire are located within the Boston, Massachusetts ADI.
8. In support of its request, WCSH-TV states that it satisfies the relevant modification criteria
set forth in the Communications Act. First, WCSH-TV states that it has established a history of carriage in
the requested communities. It indicates that it has been carried in all of the requested communities for
anywhere from 8 to 10 years. Second, WCSH-TV indicates that all of the instant communities are located
within its Grade B contour. WCSH-TV points out that the Bureau has repeatedly found that broadcast stations
with Grade B or better over-the-air signal coverage provide local service to communities for purposes of
mandatory carriage. WCSH-TV states that the Bureau has also recognized geographic proximity as another
means for establishing coverage or other local service to the cable communities. In this instance, WCSH-TV
points out that its city of license is located only 45 miles from the cable system's principal headend in Dover,
New Hampshire.
9. Third, WCSH-TV states that it provides valuable local programming which is specifically
targeted to the communities. For instance, WCSH-TV indicates that from April 21 through October 20, 1998,
its News Center presented over 184 stories focusing on events in neighboring areas of New Hampshire,
including at least 49 stories specifically relating to or involving the instant cable communities. WCSH-TV
argues that, to the extent that other stations do provide local coverage to the communities, the Bureau has made
clear that such coverage "does not act as a bar to a station's ADI claim."
10. Finally, WCSH-TV states that it has substantial viewership in the system's service area. It
points out that recent viewing surveys reflect that during the course of an average week, 45% of the total TV
households and 22% of the noncable households in Strafford and Rockingham Counties watch WCSH-TV.
Moreover, when compared to the 11 Boston ADI stations' viewership in Strafford County, WCSH-TV states
that it ranks fourth in Sunday through Saturday 7:00 a.m.-1:00 p.m. average quarter-hour cume for total
households. Of the Portland ADI stations, WCSH-TV indicates that it has the largest viewership in
Rockingham and Strafford Counties.
11. In its opposition, MediaOne argues that WCSH-TV's request should be denied because the
station has failed to demonstrate that it adequately meets the criteria necessary for market modification.
Although WCSH-TV is carried in the cable communities, MediaOne argues that such voluntary carriage cannot
overcome WCSH-TV's failure to meet the remaining market modification factors nor does it justify
jeopardizing the must carry rights of the Boston ADI NBC affiliate, WHDH-TV.
12. MediaOne states that WCSH-TV also fares poorly in its reliance on its Grade B coverage.
MediaOne asserts that while the Commission has previously relied on a station's Grade B contour as a last
resort to prevent the contraction of a station's market, it does not typically rely solely on the Grade B to expand
a market. In addition, MediaOne states that the station's geographic distance of more than 56 miles from the
cable communities equals or exceeds those found to justify exclusion of cable communities from a station's
market for must carry purposes.
13. MediaOne points out that WCSH-TV also does not provide evidence of programming
specifically tailored to the instant communities. MediaOne states that WCSH-TV is a NBC network affiliate
and thus broadcasts NBC programming which has no specific nexus or relevance to the communities herein.
In any event, even if such programming did target the communities, MediaOne states that it is already available
from the Boston ADI's own NBC affiliate, WHDH-TV. While WCSH-TV asserts that it provides "locally-
oriented" programming, MediaOne argues that many of the news stories and program information listed in
WCSH-TV's petition appear to focus on issues of potential general appeal to New Hampshire and Maine
residents and do not address news or events specific to any of the instant communities.
14. MediaOne states further that WCSH-TV fails to provide any evidence to support its claim that
the instant communities are inadequately provided local coverage by their own market stations. For instance,
MediaOne points out that WCSH-TV completely ignores the fact that the cable communities all receive
WMUR-TV, a Grade A station licensed to Manchester, New Hampshire, and WNDS, licensed to Derry, New
Hampshire. MediaOne states that WMUR-TV provides extensive news and sports coverage from the cable
communities as well as extensive public affairs and local entertainment programming and that WNDS reached
an agreement on a formal "news alliance" with the Boston ADI CBS affiliate, WBZ-TV, to air a nightly local
newscast at 10:00 p.m.
15. With regard to the fourth factor, MediaOne maintains that although WCSH-TV argues that
"[of] the Portland ADI stations, WCSH has by far the greatest viewership in Rockingham and Strafford
counties," the relevant question is not how WCSH-TV fares with respect to other Portland stations, but how
its viewership compares with the in-market NBC affiliate, WHDH-TV. In a study conducted by Media
Strategies, MediaOne states that the ratings found for WCSH-TV in both Strafford and Rockingham Counties
were easily eclipsed by that of WHDH-TV in all or virtually all dayparts. Moreover, MediaOne indicates
that WHDH-TV is considered to be significantly viewed in both Rockingham and Strafford Counties.
MediaOne points out that in its recent action in Guy Gannett Communications, Inc., the Bureau noted that
a similar comparison of viewership levels of Portland station WGME-TV and Boston station WBZ-TV show
"a preference for WBZ-TV, in the subject communities, especially in Rockingham County."
16. Finally, MediaOne points out that due to the fact that Portland, WCSH-TV's city of license,
is slightly closer to the cable system's principal headend than is Boston, carriage of WHDH-TV could be at
risk should WCSH-TV's request be granted since Commission rules require a cable operator to carry only the
closest of two identical network affiliates. MediaOne argues that such displacement of an in-market station
is not what Congress had in mind when it enacted the modification rules.
17. In its opposition, WMUR-TV states that WCSH-TV makes an insufficient showing under the
four modification criteria to justify grant of its request. WMUR-TV states that in instances where affiliates of
the same network in adjacent ADIs have both been historically carried, the factor relating to historic carriage
is not significant to the ultimate decision as to modification as Section 76.56(b)(4)(ii) of the rules requires
a cable system to carry only the local network affiliate closest to its principal headend. WMUR-TV argues,
therefore, that the fact that WCSH-TV, or indeed any of the other Portland ADI stations, may have been
historically carried in the communities does not support its requested relief.
18. Further, WMUR-TV points out that WCSH-TV's showing under the second factor is not
persuasive as WHDH-TV and WCSH-TV place approximately the same predicted strength over the
communities herein while WMUR-TV places an even stronger signal. WMUR-TV indicates that its Grade
A contour covers all of the communities, while WHDH-TV's predicted Grade B contour encompasses all but
4 of the 26 communities. WMUR-TV states that although WCSH-TV's predicted Grade B contour does
encompass all of the communities, its ratings, as described below, suggest that viewers in the communities turn
to WHDH-TV and WMUR-TV for local news programming and information. WMUR-TV also indicates that
the communities herein are, on average, 49.7 miles from Boston, WHDH-TV's city of license, and 54.5 miles
from Portland, WCSH-TV's city of license.
19. While WCSH-TV does attempt to demonstrate that it covers local news stories of interest in
the New Hampshire communities, WMUR-TV argues that such showing falls far short of the programming
that WMUR-TV itself provides. WMUR-TV points out that it has a unique tie and responsibility to the state
of New Hampshire and its citizens. It states that it is the only commercial VHF station licensed to New
Hampshire, the only affiliate of a major network and the first station to bring digital television to the state. It
maintains that it is aggressively committed to its coverage of New Hampshire news and has a news staff of 63
full-time people. Because its signal, in combination with translator stations, broadcasts over-the-air to the
entire state, WMUR-TV states that it provides 71 hours of news per week with a third of each half hour
dedicated to New Hampshire news.
20. WMUR-TV argues that WCSH-TV's viewership claims deflect the true state of WCSH-TV's
ratings in Strafford and Rockingham Counties. For instance, WMUR-TV states that a review of the Nielsen
ratings provided by WCSH-TV indicate that where WCSH-TV garners a mere 1 share each of cable and
noncable households, WHDH-TV garners a 14 share of cable households and a 15 share of noncable
households, while WMUR-TV garners a 9 and 11 share, respectively. WMUR-TV states that the dayparts
dedicated to local news rather than entertainment programming reflect even lower ratings for WCSH-TV.
21. Finally, WMUR-TV argues that grant of WCSH-TV's petition would alter the basic structure
of the Boston ADI, something that Congress did not envision. WMUR-TV states that the Bureau has also
refused to "unduly upset the economic marketplace expectations underlying the affiliation concept." WMUR-
TV states that the same concerns apply here as grant of WCSH-TV's petition would jeopardize WHDH-TV's
right to cable carriage in its own ADI, all to the benefit of an adjacent market NBC affiliate.
22. In its reply to MediaOne, WCSH-TV argues that MediaOne fails to provide sufficient grounds
for denying the instant request. WCSH-TV states that MediaOne overlooks the system's geographic location
relative to the actual local service areas of the two television markets, but instead unproductively compares
WCSH-TV to WHDH-TV. WCSH-TV points out that MediaOne does not challenge WCSH-TV's longterm
historic carriage, ignores the Commission's consistent reliance upon Grade B coverage to demonstrate service
to cable communities, and does not directly challenge the WCSH-TV's viewership evidence. Moreover,
contrary to MediaOne's implications, WCSH-TV states that Commission rules do not require cable systems
to delete multiple local affiliates of a common network. Therefore, WCSH-TV maintains, WHDH-TV's future
carriage would not be in jeopardy should the requested modification be granted.
23. In reply to WMUR-TV's opposition, WCSH-TV states that WMUR-TV does not dispute that
WCSH-TV addresses each of the modification criteria, but instead attempts to compare its service to that of
WCSH-TV and also to advance arguments on behalf of WHDH-TV, a station that did not even participate in
this proceeding. WCSH-TV argues that WHDH-TV's failure to participate in this proceeding suggests that
a grant of the request would be unlikely to impact the market adversely and that the status quo would be
maintained. WCSH-TV argues that it is not involved in a comparative hearing with respect to WMUR-TV
and WHDH-TV and that it fully satisfied all of the criteria for modification. Moreover, WCSH-TV states that
the suggestion that the Bureau should follow its recently released decision in Guy Gannett is misplaced as the
facts in that case are dissimilar to those presented herein and the Commission must consider the merits of
WCSH-TV's petition separately. In any event, WCSH-TV points out, the Guy Gannett case is not final as
there is a pending reconsideration.
IV. DISCUSSION
24. The counties of Strafford and Rockingham, in which the communities requested for inclusion
are located, are situated in the northeastern portion of the Boston ADI and are geographically proximate to the
Portland ADI, to which WCSH-TV is licensed. In our review of the case herein, the factors presented by
WCSH-TV argue for grant of its request. WCSH-TV has a long history of carriage in the communities at issue
(factor I); provides Grade B coverage and specifically-directed programming to the communities (factor II);
and has reasonable viewership in both counties (factor IV). Other factors inherent in this situation, however,
support a denial of the requested modification and are ultimately more persuasive
25. WCSH-TV, an NBC network affiliate, is seeking to modify its market to include 26
communities located in the Boston ADI. These communities are served by the Boston market NBC affiliate,
WHDH-TV. In such circumstances, we are especially concerned that our decision not unduly upset the
economic marketplace expectations underlying the affiliation concept. Therefore, we must take into account
the effect that a grant of must carry status to WCSH-TV will have on WHDH-TV and the structure of the
Boston market.
26. Our review of the case reveals several important factors. Both WCSH-TV and WHDH-TV
provide approximately equal Grade B coverage of the communities at issue. Geographically, however, there
is some disparity. According to the most recently available Commission records, the subject communities are
served by three separate physical systems operated by MediaOne -- one system located totally in Strafford
County, one located totally within Rockingham County, and the other serving communities in both counties.
An analysis of the distances between the two stations' cities of license and the individual communities in the
three systems reveals that all of the Strafford County communities are closer to Portland than to Boston, while
at least one-quarter of the Rockingham communities are either closer to Portland or equi-distant between
Portland and Boston. A grant of must carry status to WCSH-TV therefore, particularly for the Strafford
County system, but in part for all three separate physical systems, would jeopardize WHDH-TV's must carry
status within its own ADI market, which is a situation not intended or envisioned by the Communications Act.
27. Viewership levels are also important in reaching our determination. WHDH-TV, the current
NBC affiliate serving the communities, achieves substantial viewership levels of 15/70 and 20/80 in Strafford
and Rockingham Counties, respectively, and is also considered to be significantly viewed in the two counties.
On the other hand, WCSH-TV achieves viewership levels of 10/57 in Strafford County, and 1/11 in
Rockingham County, and is considered to be significantly viewed in Strafford County as a whole and,
individually, in each of the Rockingham County communities. A comparison of these viewership levels shows
a more marked preference for WHDH-TV in the subject communities. Further, while WCSH-TV has shown
that it provides locally-focused programming to the communities, it has not provided any information to show
that WHDH-TV, or indeed any other Boston ADI station eligible to be carried, fails to provide adequate news
coverage or other local programming.
28. Finally, we cannot overlook the importance of the local programming the communities receive
from their own market stations. We note MediaOne's carriage of two other Portland market stations, WGME-
TV and WMTW-TV, which are apparently being carried voluntarily, as is WCSH-TV. As such, our action
herein does not place WCSH-TV at an unfair disadvantage to the stations with which it competes.
29. In light of WHDH-TV's current viewership in all of the communities, and the potential danger
to WHDH-TV's must carry status in more than a third of requested communities, we see no reason to interfere
with the present affiliate relationship of the relevant ADIs or change the status quo of the stations involved,
despite the otherwise strong showing provided by WCSH-TV. WCSH-TV has long been carried in the subject
communities pursuant to retransmission consent agreements and there has been no indication by MediaOne that
it intends to alter this arrangement.
V. ORDERING CLAUSES
30. Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934,
as amended (47 U.S.C. 534(h) and 76.59 of the Commission's rules, 47 C.F.R. 76.59), that the petition for
special relief (CSR-5326-A), filed on behalf of Pacific and Southern Company, IS DENIED.
31. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules.
FEDERAL COMMUNICATIONS COMMISSION
William H. Johnson, Deputy Chief
Cable Services Bureau